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Judge Kevin C. Newsom was one of five
additions to President Donald Trump’s list of potential U.S. Supreme Court nominees in November,
a few months after he was seated on the U.S. Court of Appeals for the Eleventh Circuit.

He’s known for a down-to-earth writing style and has a personal story involving challenges
faced by close family members that Sen. Dianne Feinstein (D-Calif.) said touched her
“very emotionally” at Newsom’s June
confirmation hearing.

As an attorney, Newsom criticized substantive due process—the doctrine applied by
the U.S. Supreme Court in cases involving reproductive rights and same-sex intimacy.

If he’s one day nominated to the high court, Democrats’ concerns about Newsom’s view
of the doctrine will likely resurface.

Newsom has also drawn criticism for defending the execution of minors while he was
Alabama’s solicitor general.

Since 1999, the judge has been a
member of the
Federalist Society, a conservative legal organization that has helped Trump choose judicial nominees.

Newsom declined a request for an interview.

1) Substantive Due Process

Newsom wrote an article “extremely critical” of substantive due process while he was
in private practice, Feinstein
said in July, referring to
Setting Incorporationism Straight: A Reinterpretation of the Slaughter House Cases, 109 Yale L.J. 643 (2000).

Newsom’s criticism of it was a cause for concern because the Supreme Court invoked
the doctrine in protecting reproductive rights “and the right to same-sex marriage,”
Feinstein said in July.

The article described substantive due process as a “historically confused and semantically
untenable doctrine.”

The doctrine “traces its roots” to the court’s “fateful” 1857
Dred Scottdecision, which held that a black man couldn’t be a U.S. citizen, Newsom said.

Chief Justice John G. Roberts Jr. similarly traced the doctrine’s roots to
Dred Scott, dissenting in 2015’s
Obergefell v. Hodges, which recognized the right of same-sex couples to marry.

One could interpret Newsom’s article as “a call for lower court judges to chart their
own way on issues like abortion and marriage equality,”
People for the American Way, a progressive advocacy organization,
wrote in a letter to the Senate Judiciary Committee.

Newsom said at his hearing that he was only trying to say that “the notion of locating
protection for substantive constitutional rights” in the Constitution’s due process
clause, “a provision that speaks by its terms only to process and procedure,” was
“perhaps not ideal.”

Newsom’s article argued for an expanded application of the Constitution’s privileges
or immunities clause, but didn’t specify whether that clause could be applied to abortion
rights and same-sex intimacy.

Justice Clarence Thomas said he was open to considering whether the clause should
have an expanded role in constitutional jurisprudence, dissenting in
Saenz v. Roe, Newsom said.

Further, his personal views of the doctrine weren’t relevant because he would simply
follow Supreme Court precedent as a judge, Newsom said—a limitation that wouldn’t
bind him if confirmed to the high court.

Newsom was confirmed by a 66-31
vote, with the help of Feinstein and 15 other Democrats.

2) Writing Style

As an attorney, Newsom wrote “legal briefs with a novelist’s sense of language,” as
described by the
Daily Report.

The National Association of Attorneys General awarded Newsom “on several occasions
the Best Brief Award for his briefing before the Supreme Court” while he was Alabama’s
solicitor general, Sen. Chuck Grassley (R-Iowa)
said in July.

As a judge, Newsom has shown an interest in making opinions readable by using less
formal than language than other judges, as demonstrated in his decision for the 11th
Circuit in a tax dispute,
Morrissey v. United States.

It involved “interesting questions” including whether a gay man could receive a tax
deduction for money he paid to an egg donor and surrogate mother to father a child
through in vitro fertilization, he said.

The IVF procedure costs weren’t deductible because they weren’t paid “for the purpose
of affecting the taxpayer’s own reproductive function,” the court ruled.

“With short sentences, sentence fragments, and contractions,” the opinion was “informal
and conversational,” resembling the writing styles of former Seventh Circuit Judge
Richard Posner and Supreme Court Justice Elena Kagan, appellate litigator
Thomas M. Byrne of Eversheds Sutherland, Atlanta,
wrote for his law firm’s blog.

Newsom also used informal language in his court’s decision finding that a car ceased
to be part of a debtor’s bankruptcy estate under Georgia law, in
Title Max v. Northington.

“So how do these provisions interact?” Newsom asked regarding the Bankruptcy Code
and the state statute.

“Very briefly, here’s the deal,” Newsom said before explaining the interaction.

Responding to a dissenting judge, Newsom said, “Here as always, we’re just doing our
best to call ‘em like we see ‘em.”

Instead, such claims must be brought as habeas corpus petitions, but Nelson was precluded
from bringing such a petition because he had already done so unsuccessfully, Newsom
said.

The court unanimously ruled against the state, finding that Section 1983 was an appropriate
vehicle for seeking an injunction against the procedure.

Speaking to ABC News in 2007, Newsom defended Alabama from criticism that it was one
of two states that didn’t provide poor death row inmates with attorneys to assist
with post-conviction review of their cases.

“The idea that inmates are en masse unrepresented, and wandering through the system
alone, is just not true,” Newsom said.

Most death row inmates were receiving representation that was “second to none,” he
said.

“In a lot of cases, the state is outmanned, outresourced and outgunned by behemoth
law firms,” he said.

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